# Petition — ANTHONY R. PEEK V. FLORIDA (No. 82-5909) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1351%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1982 ## Text “RECEIVED DEC17 1982 Orrwc UF tric Cicnd SUPREME COURT, U.S. * i Case No. OR Spee, RO ae PAGE NO. a © aw eB A47-ASO 675 F.2d 913 (7th Cir. 1962)...........eeeee 298 F.2d 725 (6th Cir. 1961)..........- ania telie 396 So. 2d 364 (Fla. 1976)..........ceseseseees 463 F.2d 1148 (Sth Cir. 1972)......... Sea Fiano eape $0 U.S.L.W. 4161 (1962).....0ce0eeceeees WN BN OI iis ones nos corinne a uenh Oe CN ve ccccacceucceceuveceuess 576 F.2d 1250 (7th Cir. ), ° 439 U.S. 801 CUO 6 bck ddeceueceanesass 643 F.2d 458 (7th Cir. 1981)........-0+0+- tes, 353 F.2d 412 (10th Cir. 1965), 8. 962 CONE daccncacaceusceueesesss 395 So.2d 492 oe 1980) , : 101 $.ce. 2036 a... a. U.S. v. gray WEF WB: TEE QIN. occinccncensccevcscessieets U.S. v. Anderson, 574 F.2d 1347 (Sth Cir. 1978).......s0002+e U.S. v, Gross, 614 F.2d 365 (3rd Cir. 1980)........s0eeeeeeees U.S. v. Morgan, 346 U.S. 502 (1954).....sesereeceerenresneeees U.S. v. Taylor, 648 F.2d 565 (9th Cir. 1981).....-.-eeeeeeeees Washington v. Texas, 438 U.S. 14 (1967).......0seeeeeseeeeeees Washington v, Strickland, 673 F.2d 879 (llth Cir. 1982)....... Sixth Amend., U.S. COMBE. nc ccccccececcencceceeeerecseeercennes Eighth Amend. , U.S. GOBE. ccnccceccenscecceecenevesesecsesanee Fourteamth Amend. , U.S. CO rr re ee Title 28, U.8.C., § L257(3) oc ccccvccccsccvccsceressseceneceses Fed. R. Crin. P. Sd. cccccvcccccescecsecceccceneseesssevesesess Fla. R. Crin. P, 9.GOD, cccvccccccsecscesccscseeusccnecesnceees -3- ie AR OE a aa a Pe. ee Cava Pie i RO a UR SA aaa fee eS py clk st A a erie jk hata oh. aan ks ea Benen Sa See bake Pe rs te far. Tiere oh: ae RE Peres Sie: Poe ee ree uP, BN Eat a IR NTN RL RE ell Neen pig OL AAS ARIAS Se p81 aR ho RS The opinion and judgment of the Supreme Court of Florida sought to be reviewed via this petition is an order denying Petitioner's request for leave to file a petition for error coram nobis. It is reproduced in the appendix as Item 3 (A46). The Supreme Court of Florida issued the opinion and judgment in this case on September 9, 1982 (A46). Petitioner filed a Motion for Rehearing (A47-A50) which was denied on November 16, 1982 (A5]). Petitioner asserted below and asserts here a depravation of his rights as guaranteed under the United States Constitution. Title 28, United States Onde, Section 1257(3), and Rule 17 of the United States Supreme Court Rules confer certiorari jurisdiction in this Court to review the judgment in this case. , Petitioner was sentenced to death on May 2, 1978. The conviction and sentence were affirmed by a five-two margin of the Florida Supreme Court in Pesk ake BEG MR GGG RR MBE BE RR i A ts ¥, State, 395 So.2d 492 (Fla. 1980), cert. denied, 101 S.Ct. 2036 (1981) _ (attached as Appendix Al - Al5). On Jume 23, 1982, Petitioner filed a re- quest for leave to file a petition for writ of error coram nobis in the trial court (attached as Al6 - A45), which was denied by the Florida Suprene Court without opinion, over tw dissents (attached hereto as A46). The re- quest was accompanied by two pieces of substantial new evidence, neither of which existed at the time of trial, and which substantially altered the weight of the evidence against Petitioner. Petitioner contends that if he is permitted to present this new evidence, neither the judgment nor sentence could stand. A rehearing petition (A47-A50) was denied by the Florida Supreme Court on November 16, 1982 (attached as Append’ x A51). The State presented three pieces of evidence incriminating Petitioner _ at trial: 1. Blood and seminal fluid stains taken from the victim's pajanas indicated the presence of type "0" secretor blood. According to the trial testimony, 33% of the population has type "0" secretor blood, including both the victim end Petitioner. 2. The victim's car was found the day after the crime at a park ap- proximately one mile from her residence, and near her place of employment. Numervus fingerprints were found inside the car, including one on the window that matched Petitioner's. Petitioner testified that, the mmrning after the crime, he saw the unlocked car while eating breakfast in the park at which the car was found, and he decided to “look around.” However, he testified that there was nothing worth toking, and he left. This fingerprint explains how Petitioner became a suspect in the crime. It was the only positive : é . 4 | : ! : : i att Tits 3. A piece of stocking containing a single fragnent of « strand of negroid hair was found on the floor of the garage of the victim's home (although the victim's body was found in the bedroom). fn employee from the Florida De- noted by the Florida Supreme Court in its opinion, that “various studies by many persons now working in my field have determined that there is probably no more than two people out of every ten thousand persons who will exhibit exactly the game characteristics in their hairs” (R-453). Base | upon documents authored by the analyst's supervisors, we now know that the hairs exanined were probably mixed up, and that the comparison was incorrectly done. Also, based upon recent scien- tific developments, we now know that the statistics relied upon are "grossly in error." Petitioner presented an alibi defense which consisted of the records of the State's halfway house, where Petitioner resided at the time of the crime, indicating that a bed check was made om the night of the crime and that all residents, including Petitioner, were “present or accounted for." Although the Assistant Director of the halfway house could not positively etate that Petitioner was present because he could have been out on authorized leave and, therefore, be “accounted for", Petitioner testified that he was on restriction that evening because he was unemployed and was not permitted The case against is concededly circun- . But we are , when considered in the evidence relating to the matching fingerprint, the hair the blood and clude that titio ‘s) Suan proven bape s) 8 reasonable ‘ that the evidence did not prove Respondent's guilt beyond a reasonable Soe Because the fingerprint on tle victim's autambile was explained, and because the blood and sanen could have come from at least one third of the population, the Linchpin of the State's case was the hair evidence and the statistical probability of two hairs matching. The jury undoubtedly gave the “statistical probability” testimony great weight. ‘The prosecutor at- tached considerable significance to it, and argued it stremously in his closing argument (R-722-725). Similarly, the State also relied heavily on these statistical probabilities in its brief filed with the Florida Supreme Court. This "probability evidence” was clearly the straw that broke the camel's back in this case of circumstantial evidence. Through his request for leave to file writ of error coram nobis, Pe- titioner sought to present tw pieces of newly discovered evidence which totally destroys the hair evidence and probability statistics presented at trial. First, some months after the trial, the hair examiner resigned after receiving an unusually poor employee evaluation. Upon rating the analyst as "\msatisfactory” in evidence handling (A28), the evaluation states: Evidence Handling Evidence | is one of Ms. Bass’ cost problen- atical areas. does rot @ ee eee pgs 2 ro blood and semen in the population, and uncovered condition on a . top overnight This failure to protec’ the : mackaring tr tae % *) * & 4 OLVeC Pl € i f e NIV eS a Via RONG PROBABILITY GF EXTRANEOUS CUNTAMINALIO \ AMONG TIEM BS CO LD. ea ~CLAS LA UL A iy ee is . i a recent case, Ms. Bass conducted a an fexier and a A the conclusion This strong probability of extraneous contamination =A | Fe as ae obtnk at cin eet ie : ; ct at that time of y . eoongh moordh pow see Taek te tas nlemenalgeie O@ eS protect them by the eis supervisor. This new evidence raises the “very strong probability of" tampering, iia albeit unintentional, which is crucial in light of the fact thet the loca- tion of the hair samples was unknown for the six month period beginning with | its arrival at the crime lab and continuing until the anelysis was performed. Mbreover, immediately after the analysis, the evidence was lost. The employee evaluation also raises questions of equal seriousness regarding the analyst's abilities to perform a hair comparison: - (Emphasis supplied) (A30). the analyst lost the hair immediately subsequent to testing and so there is no opportunity now to go back and demonstrate conclusively that it wan not consistent with Petitioner's. However, the evaluation shows that the analyst's repeated failure to properly care for evidence, in the wrds of the Florida Department of Law Enforcement supervisory personnel, “leaves a very strong probability of extraneous contamination, cross-contamination _3/ The Florida Supreme Court held that the State's failure to demon- to the Court, only where the Defendant proves “probable tampering." _4/ Scale counting was the method utilized in this case. qung items, and possible loss of trace evidence." Thus, Petitioner can now with the evidence. Also, Petitioner can show that the analyst did not have the abilities to perform a accurate analysis. In a study published several months after the trial, it was found that one of three inexperienced hair statistics. At the time of the trial, there was only one experiment in the field which purported to establish statistical probsbilities for matching hair. This experiment arrived at a statistical probsbility of 1 in 4500 that two heirs will match. Baged upon this experiment, the analyst testified in my field have determined thet subsequent to trial, the author of this experiment significantly qualified it in further wrk, and conceded that the statistics would not apply to a case euch as this. Then, in April, 1982, the latest and only other crticle on the subject concluded that the first experiment was totally incorrect: In the seven years thet have have lapsed since the publi- cation of the first article, “contin Gnu’ work (Emphasis supplied) (A34). ‘Thus, the testimony of the hair witness concerning probebilities has been completely discredited in the field and Petitioner alleged below and was prepared to prove that the witness’ statistics are not relied upon by any other hair experts. _5/ Petitioner can also show that the witness was seriously mistaken, in her that the ce consistent with Tetitioner’s heir 2” 30-35 . Gl 25 such characteristics are recognized to ex- _6/ Petitioner attached the anal: 's affidavit to the coram nobis cittol ich ovated thet he wae relying upon tiie experince. ae This simply was not true. However, it was the of the public to cross-examine on it. He did not. ~ 9. without opinion, but over two dissents, the Florida Supreme Court denied Petitioner's request for leave to present these two crucial pieces cf new evidence -- the employee evaluation and the new probability studies -- to the trial court for the purposes of either guilt or the appropriateness of the death sentence. trial, unless the Florida Supreme Court’ first determines that the new evidence would “conclusively” have prevented the conviction, violates the Sixth, Eighth and Fourteenth Amendments to the United States Constitution. Florida law requires that in order to present new evidence to the trial court after trial in a criminal case, a petitioner mst first seek leave in the appellate court which has previously entertained an appeal from the final judgment in the case and affirmed it by ite mandate. Hallman v. State, 371 So.2d 482 (Fla. 1979). The evidence must be newly discovered ~~ that is, it did not exist nor could it have been discovered at the time of trial. Neither the employee evaluation nor the 1982 study existed et the time of txial in this case, Next, Florida law requixss that in order to be permitted to present the new evidence, Petitioner mst show that the new evidence would “conclusively prevent the entry of judgnent against the Petitioner." Haliman, supra (4-3 majority opinion). Although the Florida Suprene Court did not spacifically state in the instant case thet its reason for denying Petitioner the relief he sought was based upon this doctrine, because the evidence did not exist at the time of trial, the only logical conclusion is that the majority of the Florida court believed that Petitioner failed to meet this requirenent by alleging sufficient prejudice. It is this procedural rule of Florida which Three of the seven justices of the Florida Supreme Court have recognized the constitutional infirmity in Florida's coram nobis procedure, at least in death cases. In a partial concurrence and partial dissent in Hallman, these clusiveness test.' view, the ragid a of the Ncechuntiocedian sabe" poche oe ig cases whace: the Gane penetey ee ee ones As Mr. in Ly, Us ek Bice 430 U.S. 349, 351 (1977), of punishment Galen. both in its ond £ I believe our failure these i ! H | : ‘ : ‘i Th nl Pee : E “t Hl 4 | i i é ! Id. at 487. The view of the dissenting justices has recently been proved correct by this Cumt in Eddings v. Oklahoma, 50 U.S.L.W. 4161 (1982), and — Green v. Georgia, 442 U.S. 95 (1979). In Eddings, this Court held that the sentencing authority must consider in mitigation any aspect of defendant's character and any of the circumstances of the offense. Clearly, where rele- vant and substantial new evidence exists which did rot exist at the time of trial and could not reasonably have been discovered at the time of trial, and where that new evidence places in substantial doubt the correctness of the conviction and sentence, the sentencing authority must be pemmitted to consider that evidence, if only for the appropriateness of the sentence. Similarly, in Green v. Georgia, 442 U.S. 95 (1979), this Court held that a state procedural rule which forbids the sentencing authority in a death case to consider relevant and reliable evidence violates the Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. See Petitioner's Petition for Rehearing before the Florida Supreme Court at 3 (A49) . The constraints imposed upon state procedural rules by the Constitution were well analyzed by the Seventh Circuit in Moprris v. isree) 643 F.2d 458, 460-61 (7th Cir. 1981). The Court there explained: courts. The Federal Constitution, however, imposes a Cir. 1972); Alices v. Gagnon, 675 F.2d 913, 923 (7th Cir. 1982). Unquestionably, the State of Florida has an interest in the finality of its convictions. However, the rumerous decisions of this Court -- Gardner, Lockett, Green, and Eddings, to name a few -- establish the well-settled pro- position that imposition of the death sentence is unique, in both its severity and its finality. Prior to the imposition of a death sentence, a death sentenced individual mst be permitted to present evidence which, had it heen available to him at trial, there is a reasonable possibility that the death penalty would not have been imposed. In pursuit of its interest in the finality of its convictions and ser tences, Florida clearly has a right to impose a prejudice standard on @ petitioner seeking to present new evidence after trial. In a motion fur « new trial under Fed. R. Grim. P. 33 or under Fla. R. Gr. P, 3.600 based upon newly discovered evidence, a petitioner must show that the newly dis- covered evidence probably wuld have resulted in acquittal. Ashe v. United States, 288 F.2d 725, 733 (6th Cir. 1961); Baker v. State, 336 So.24 364 (Fla, 1976). Where navly discovered evidence was available to the prose- cutor ani rot submitted to the defense, a lesser standard of prejudice mst be sham. United States v. Agurs, 427 U.S. 112 (1976>. _fee sive Unites States v. Anderson, 574 F.2d 1347, 1354 (Sth Cir. 1978). ‘The writ of error coram nobis is also used in the f-Jeral system to correct a grave injustice. ted § , 346 U.S. 502 (1954). When a coram nobis claim is made, a picteteiac ta euatelat te & heath, et. t2 w- less the face of the petition clearly shows that he is entitled to no relief, United State maylor, 648 F.2d 565 (9th Cir. 1981); Quensby v. United States, oss 9.26 412, 417 (Och Cte. 1965), cert. denied, 383 U.S. 962 (1966), a standard precisely opposite of Florida's. At the hearing, the case law seems to suggest that a petitioner has the burden of proof, which, if met, shifts to the government to show that the error was harmless. E.g., United tes Gross, 614 F.2d 365 (3rd Cir. 1980). Despite the general confusion and differing views of the federal courts on the standard of prejudice which must be shown before post-conviction relief may be obtained because the trial was tainted, no court, other than the Florida Supreme Court holds that a petitioner must meet the ultimate burden of conclusiveness in order to be entitled to a hearing to present his claim. Such a strict prejudice standard is unconstitutional . The facts of this case show how strictly that standard is applied in Florida and dewnstrate ite unconstitutionality. This issue takes on added significance in light of the recent trend of trial courts to admit “scientific” evidence on hair and fiber corparisons, dental comparisons, and mmerous other emerging scientific areas. The art of science is a changing one. Where scientific evidence is permitted to be introduced, there must be a reasonable mechanism whereby changes in the state of the art may also be introduced. The Sixth and Fourteenth Anend- ments, and the Eighth Amendment in a death case, are all violated where the State's mechanism to allow the introduction of the latter state of the art requires such a severe prejudice showing so as to allow for execution where a reasunable possibility exists that the person would have been aquitted had the state of science been so advanced at the time of trial. A death penalty statute is unconstitutionally arbitrary where the same set of facts can be presented to a jury twice, and yields different results because our scientific knowledge has advanced, but there is no reasonable mechanism to present the advances in the case that was tried prior to those advances. In this case, Petitioner submits that the new evidence is so substantial that Petitioner would not have been convicted, let alone sentenced to death, had it been available at the time of trial. After all, without the -13- hair evidence, the State's case consisted of a fingerprint found on a car one mile fram the mirder scene which was explained by Petitioner, and blood found at the scene consistent with that of the victim, the Petitioner, and _gpe-third of the population. There seems little doubt that such evidence would be insufficient to sustain a conviction under the principles of the United States Constitution eramciated in J: . Virginia, 443 U.S. 307 (1979). But at the very least, Petitioner must be given the right to pre- sent this evidence where it bears substantially on his innocence as a miti- gating factor in the sentencing phase. The distinction draw by Florida between the prejudice that mist be showm in a motion for a new trial versus a coram nobis petition is an arbitrary one. There can be no rational basis for a rule which allows new evidence under certein circumstances within ten days after trial but disallows it thereafter, where the new evidence happens to come into existence after that tenth day. No interest of the state is advanced by such a rule and where, as here, the new evidence did not exist within the ten dey period, a de- fendant carmot be favlted for failing to find it. The right to a full and fair state hearing to determine the validity of a death-sentenced individual's claims is denied by Florida's application of its coram nobis rule. Petitioners, including the petitioner herein, get mo opportunity to present their new evidence and prove the incorrectness of the original judgment. Rather, the state appellate court usurps the deci- sion of whether coram nobis should issue without the benefit of an eviden- tiary hearing or a record. The eclentific evidence at trial in the instant case concerning the probabilities of matching hairy was based on a lone experiment which has now been discredited. To deny the Petitioner the cpportunity to show this is to allow a defendant to be executed based upon scientific propositions of the caliber that the world is flet, even though we learn that the world is round prior to the execution. Similarly, we now know from the analyst's exployee evaluation that there is a high probability that the wrong hairs were compared and we know fcex certain that the analyst did not have the requisite skille to perform the analysis. A travesty of justice would occur if Petitioner is executed without according the trial court the opportunity to weigh the new evidence. ere a --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1351%3A1. Public record. Not legal advice.